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[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 1082 Reported in Senate (RS)]

<DOC>

                                                       Calendar No. 272
114th CONGRESS
  1st Session
                                S. 1082

 To amend title 38, United States Code, to provide for the removal or 
 demotion of employees of the Department of Veterans Affairs based on 
           performance or misconduct, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             April 23, 2015

   Mr. Rubio (for himself, Mr. Vitter, Mr. Barrasso, Mr. Toomey, Mr. 
Cassidy, Mr. Flake, Mr. Cornyn, Mr. Hatch, Mr. Johnson, Mr. McCain, Mr. 
 Burr, Mr. Kirk, Mr. Moran, Mr. Tillis, and Ms. Ayotte) introduced the 
 following bill; which was read twice and referred to the Committee on 
                           Veterans' Affairs

                            October 19, 2015

                Reported by Mr. Isakson, with amendments
  [Omit the part struck through and insert the part printed in italic]

_______________________________________________________________________

                                 A BILL

 
 To amend title 38, United States Code, to provide for the removal or 
 demotion of employees of the Department of Veterans Affairs based on 
           performance or misconduct, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Department of Veterans Affairs 
Accountability Act of 2015''.

SEC. 2. REMOVAL OR DEMOTION OF EMPLOYEES BASED ON PERFORMANCE OR 
              MISCONDUCT.

    (a) In General.--Chapter 7 of title 38, United States Code, is 
amended by adding at the end the following new section:
``Sec. 714. Employees: removal or demotion based on performance or 
              misconduct
<DELETED>    ``(a) In General.--The Secretary may remove or demote an 
individual who is an employee of the Department if the Secretary 
determines the performance or misconduct of the individual warrants 
such removal or demotion. If the Secretary so removes or demotes such 
an individual, the Secretary may--</DELETED>
        <DELETED>    ``(1) remove the individual from the civil service 
        (as defined in section 2101 of title 5); or</DELETED>
        <DELETED>    ``(2) demote the individual by means of--
        </DELETED>
                <DELETED>    ``(A) a reduction in grade for which the 
                individual is qualified and that the Secretary 
                determines is appropriate; or</DELETED>
                <DELETED>    ``(B) a reduction in annual rate of pay 
                that the Secretary determines is appropriate.</DELETED>
    ``(a) In General.--(1) The Secretary may remove or demote an 
individual who is an employee of the Department if the Secretary 
determines the performance or misconduct of the individual warrants 
such removal or demotion.
    ``(2) A determination under paragraph (1) that the performance or 
misconduct of an individual warrants removal or demotion may consist of 
a determination of any of the following:
            ``(A) The individual neglected a duty of the position in 
        which the individual was employed.
            ``(B) The individual engaged in malfeasance.
            ``(C) The individual failed to accept a directed 
        reassignment or to accompany a position in a transfer of 
        function.
            ``(D) The individual violated a policy of the Department.
            ``(E) The individual violated a provision of law.
            ``(F) The individual engaged in insubordination.
            ``(G) The individual over prescribed medication.
            ``(H) The individual contributed to the purposeful omission 
        of the name of one or more veterans waiting for health care 
        from an electronic wait list for a medical facility of the 
        Department.
            ``(I) The individual was the supervisor of an employee of 
        the Department, or was a supervisor of the supervisor, at any 
        level, who contributed to a purposeful omission as described in 
        subparagraph (H) and knew, or reasonably should have known, 
        that the employee contributed to such purposeful omission.
            ``(J) Such other performance or misconduct as the Secretary 
        determines warrants the removal or demotion of the individual 
        under paragraph (1).
    ``(3) If the Secretary removes or demotes an individual as 
described in paragraph (1), the Secretary may--
            ``(A) remove the individual from the civil service (as 
        defined in section 2101 of title 5); or
            ``(B) demote the individual by means of--
                    ``(i) a reduction in grade for which the individual 
                is qualified and that the Secretary determines is 
                appropriate; or
                    ``(ii) a reduction in annual rate of pay that the 
                Secretary determines is appropriate.
    ``(b) Pay of Certain Demoted Individuals.--(1) Notwithstanding any 
other provision of law, any individual subject to a demotion under 
subsection (a)(2)(A) (a)(3)(B)(i) shall, beginning on the date of such 
demotion, receive the annual rate of pay applicable to such grade.
    ``(2) An individual so demoted may not be placed on administrative 
leave or any other category of paid leave during the period during 
which an appeal (if any) under this section is ongoing, and may only 
receive pay if the individual reports for duty. If an individual so 
demoted does not report for duty, such individual shall not receive pay 
or other benefits pursuant to subsection (e)(5).
    ``(c) Notice to Congress.--Not later than 30 days after removing or 
demoting an individual under subsection (a), the Secretary shall submit 
to the Committees on Veterans' Affairs of the Senate and House of 
Representatives notice in writing of such removal or demotion and the 
reason for such removal or demotion.
    ``(d) Procedure.--(1) The procedures under section 7513(b) of title 
5 and chapter 43 of such title shall not apply to a removal or demotion 
under this section.
    ``(2)(A) Subject to subparagraph (B) and subsection (e), any 
removal or demotion under subsection (a) may be appealed to the Merit 
Systems Protection Board under section 7701 of title 5.
    ``(B) An appeal under subparagraph (A) of a removal or demotion may 
only be made if such appeal is made not later than seven days after the 
date of such removal or demotion.
    ``(e) Expedited Review by Administrative Law Judge.--(1) Upon 
receipt of an appeal under subsection (d)(2)(A), the Merit Systems 
Protection Board shall refer such appeal to an administrative law judge 
pursuant to section 7701(b)(1) of title 5. The administrative law judge 
shall expedite any such appeal under such section and, in any such 
case, shall issue a decision not later than 45 days after the date of 
the appeal.
    ``(2) Notwithstanding any other provision of law, including section 
7703 of title 5, the decision of an administrative judge under 
paragraph (1) shall be final and shall not be subject to any further 
appeal.
    ``(3) In any case in which the administrative judge cannot issue a 
decision in accordance with the 45-day requirement under paragraph (1), 
the removal or demotion is final. In such a case, the Merit Systems 
Protection Board shall, within 14 days after the date that such removal 
or demotion is final, submit to Congress and the Committees on 
Veterans' Affairs of the Senate and House of Representatives a report 
that explains the reasons why a decision was not issued in accordance 
with such requirement.
    ``(4) The Merit Systems Protection Board or administrative judge 
may not stay any removal or demotion under this section.
    ``(5) During the period beginning on the date on which an 
individual appeals a removal from the civil service under subsection 
(d) and ending on the date that the administrative judge issues a final 
decision on such appeal, such individual may not receive any pay, 
awards, bonuses, incentives, allowances, differentials, student loan 
repayments, special payments, or benefits.
    ``(6) To the maximum extent practicable, the Secretary shall 
provide to the Merit Systems Protection Board, and to any 
administrative law judge to whom an appeal under this section is 
referred, such information and assistance as may be necessary to ensure 
an appeal under this subsection is expedited.
    ``(f) Whistleblower Protection.--(1) In the case of an individual 
seeking corrective action (or on behalf of whom corrective action is 
sought) from the Office of Special Counsel based on an alleged 
prohibited personnel practice described in section 2302(b) of title 5, 
the Secretary may not remove or demote such individual under subsection 
(a) without the approval of the Special Counsel under section 1214(f) 
of title 5.
    ``(2) The Office of Special Counsel shall establish--
            ``(A) a mechanism to expedite cases for corrective action 
        under paragraph (1); and
            ``(B) a standard for the approval under paragraph (1) of 
        removal or demotion under subsection (a), which may include a 
        determination as to whether the removal or demotion is a 
        prohibited personnel action.
    ``(3)(A) Notwithstanding any other provision of law, the Special 
Counsel may terminate an investigation of a prohibited personnel 
practice alleged by an individual in connection with a removal or 
demotion of the individual under subsection (a) only after the Special 
Counsel provides to the individual a written statement of the reasons 
for the termination of the investigation.
    ``(B) The written statement provided to the individual under 
subparagraph (A) may not be admissible as evidence in any judicial or 
administrative proceeding without the consent of such individual.
<DELETED>    ``(f) Limitation on Removal or Demotion.--In the case of 
an individual seeking corrective action (or on behalf of whom 
corrective action is sought) from the Office of Special Counsel based 
on an alleged prohibited personnel practice described in section 
2302(b) of title 5, the Secretary may not remove or demote such 
individual under subsection (a) without the approval of the Special 
Counsel under section 1214(f) of title 5.</DELETED>
    ``(g) Relation to Other Provisions of Law.--(1) The authority 
provided by this section is in addition to the authority provided by 
subchapter V of chapter 75 of title 5 and chapter 43 of such title.
    ``(2) Subchapter V of chapter 74 of this title shall not apply to 
any action under this section.
    ``(h) Definitions.--In this section:
            ``(1) The term `individual' means an individual occupying a 
        position at the Department of Veterans Affairs but does not 
        include--
                    ``(A) an individual, as that term is defined in 
                section 713(g)(1); or
                    ``(B) a political appointee.
            ``(2) The term `grade' has the meaning given such term in 
        section 7511(a) of title 5.
            ``(3) The term `misconduct' includes neglect of duty, 
        malfeasance, or failure to accept a directed reassignment or to 
        accompany a position in a transfer of function.
            ``(4) The term `political appointee' means an individual 
        who is--
                    ``(A) employed in a position described under 
                sections 5312 through 5316 of title 5, (relating to the 
                Executive Schedule);
                    ``(B) is a limited term appointee, limited 
                emergency appointee, or noncareer appointee in the 
                Senior Executive Service, as defined under paragraphs 
                (5), (6), and (7), respectively, of section 3132(a) of 
                title 5; or
                    ``(C) is employed in a position of a confidential 
                or policy-determining character under schedule C of 
                subpart C of part 213 of title 5 of the Code of Federal 
                Regulations.''.
    (b) Clerical and Conforming Amendments.--
            (1) Clerical.--The table of sections at the beginning of 
        such chapter is amended by adding at the end the following new 
        item:

``714. Employees: removal or demotion based on performance or 
                            misconduct.''.
            (2) Conforming.--Section 4303(f) of title 5, United States 
        Code, is amended--
                    (A) by striking ``or'' at the end of paragraph (2);
                    (B) by striking the period at the end of paragraph 
                (3) and inserting ``, or''; and
                    (C) by adding at the end the following:
            ``(4) any removal or demotion under section 714 of title 
        38.''.

SEC. 3. REQUIRED PROBATIONARY PERIOD FOR NEW EMPLOYEES OF DEPARTMENT OF 
              VETERANS AFFAIRS.

    (a) In General.--Chapter 7 of title 38, United States Code, as 
amended by section 2, is further amended by adding at the end the 
following new section:
``Sec. 715. Probationary period for employees
    ``(a) In General.--Notwithstanding sections 3321 and 3393(d) of 
title 5, the appointment of a covered employee shall become final only 
after such employee has served a probationary period of 540 days. The 
Secretary may extend a probationary period under this subsection at the 
discretion of the Secretary.
    ``(b) Covered Employee.--In this section, the term `covered 
employee'--
            ``(1) means any individual--
                    ``(A) appointed to a permanent position within the 
                competitive service at the Department; or
                    ``(B) appointed as a career appointee (as that term 
                is defined in section 3132(a)(4) of title 5) within the 
                Senior Executive Service at the Department; and
            ``(2) does not include any individual with a probationary 
        period prescribed by section 7403 of this title.
    ``(c) Permanent Hires.--Upon the expiration of a covered employee's 
probationary period under subsection (a), the supervisor of the 
employee shall determine whether the appointment becomes final based on 
regulations prescribed for such purpose by the Secretary.''.
    (b) Application.--The amendment made by subsection (a) shall apply 
to any covered employee (as that term is defined in section 715 of 
title 38, United States Code, as added by such subsection) appointed 
after the date of enactment of this section.
    (c) Clerical and Conforming Amendments.--
            (1) Clerical.--The table of sections at the beginning of 
        such chapter, as amended by section 2, is further amended by 
        adding at the end the following new item:

``715. Probationary period for employees.''.
            (2) Conforming.--Title 5, United States Code, is amended--
                    (A) in section 3321(c), by--
                            (i) striking ``Service or'' and inserting 
                        ``Service,''; and
                            (ii) inserting at the end before the period 
                        the following: ``, or any individual covered by 
                        section 715 of title 38''; and
                    (B) in section 3393(d), by adding at the end after 
                the period the following: ``The preceding sentence 
                shall not apply to any individual covered by section 
                715 of title 38.''.

<DELETED>SEC. 4. COMPTROLLER GENERAL STUDY OF DEPARTMENT TIME AND SPACE 
              USED FOR LABOR ORGANIZATION ACTIVITY.</DELETED>

<DELETED>    (a) Study Required.--Not later than 180 days after the 
date of the enactment of this Act, the Comptroller General of the 
United States shall conduct a study on the amount of time spent by 
Department of Veterans Affairs employees carrying out organizing 
activities relating to labor organizations and the amount of space in 
Department facilities used for such activities. The study shall include 
a cost-benefit analysis of the use of such time and space for such 
activities.</DELETED>
<DELETED>    (b) Report to Congress.--Not later than 90 days after the 
completion of the study required under subsection (a), the Comptroller 
General shall submit to the Committee on Veterans' Affairs of the 
Senate and the Committee on Veterans' Affairs of the House of 
Representatives a report on the results of the study.</DELETED>
                                                       Calendar No. 272

114th CONGRESS

  1st Session

                                S. 1082

_______________________________________________________________________

                                 A BILL

 To amend title 38, United States Code, to provide for the removal or 
 demotion of employees of the Department of Veterans Affairs based on 
           performance or misconduct, and for other purposes.

_______________________________________________________________________

                            October 19, 2015

                        Reported with amendments
```